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Amended norm on moral damages – a new noose for journalists?

On 17 November the Verkhovna Rada passed a draft law “On amendments to Ukraine’s Civil Code on compensating moral damages” (reg. No. 4332 from 08.04.09) which makes amendments to Article 23, Item 4.2. This has now added as one of the grounds for moral compensation “for denigrating the honour, dignity, as well as the business reputation of an individual or legal entity” “including by circulating inaccurate information”. Article 23 § 3 now reads:

“3. Moral compensation is paid in money, other property in another way. The amount of monetary compensation for moral damages is determined by the court dependent on the nature of the offence, the status of the person who suffered the damages, the nature and means by which the inaccurate information was circulated, as well as taking into account other circumstances which have considerable significance. In determining the amount of monetary compensation for moral damages the need to be reasonable and fair is borne in mind, as well as the material position of the person or entity inflicting such damages”.

As a result of these amendments, opinions were expressed in the media to the effect that the changes were aimed against journalists and that a Presidential veto needed to be sought. These views were expressed by both journalists and media lawyers. Thus for example, the Editor in Chief of the “Observer”, Albert Feldman, wrote”: “On 17 November yet another law was passed where the level of punishment depends on the status of the victim (if a deputy suffered, then the punishment is greater)”. “Analysis of the amendments to the Civil ode shows that deputies have decided to mount a reliable material obstruction against criticism aimed at them and their leaders – presidential candidates”.[1], According to Taras Shevchenko, Director of the Media Law Institute: “Deputies are attempting to make money out of journalists. According to this law, officials will be able to ask for a greater amount of compensation for moral damages in suits against journalists, citing their special status.”[2] One can cite many such examples.

They have perceived the requirement to determine the amount of moral damages dependent on the status of the person who suffered the damages in the same way as the deputies who voted for the draft law. As the Head of the parliamentary Committee on Freedom of Speech and Information, Anna German told the “OstroV” website: “I think it is fair that if, say, this is the President or the Prime Minister, their rates are very high and they have expended a lot of effort to reach their position. And a person who unfairly tries to knock them from the heights, should compensate such a person accordingly”.[3]. The view that the new law will be used in this way is shared by her First Deputy, Andriy Shevchenko, who did not vote for the amendments. “This draft law flagrantly violates the principle of equality of citizens before the law. It turns out that it costs more to offend a deputy, than a teacher, but cheaper than to offend the President. We again have the situation where all are equal, but some are more equal. … These changes will undoubtedly be used against the media. Now Ukrainian journalists will be forced to write only horoscopes and weather forecasts – for any statements aimed at the authorities they can simply be dragged through the courts. And through the Ukrainian courts at that”. [4].

Obviously if judges also interpret the amendments in this way then the entire practice of determining moral damages could change significantly. However in my view this will not happen and the amendments do not in fact pose a danger to journalists. Let’s look at the law passed more carefully.

The addition of Article 23 Item 4.2 changes nothing: courts were already awarding moral damages for denigration of honour, dignity and business reputation through circulation of inaccurate information. The court must establish whether the information was accurate or inaccurate, and if the latter, whether the journalist acted with ill intent.

As for the new wording in Article 23 § 3, determining the size of damages depending on the person’s status can be interpreted in an entirely different manner to that seen among deputies and journalists, but rather in the principles of the European Court of Human Rights, reiterated in many judgments regarding Article 10 of the European Convention. Worth repeating this once again!

Politicians clearly have the right to defend their reputation, even if they are acting in a private capacity, however the requirements for such defence should be weighed against the interests of open discussion on political issues since exceptions from freedom of expression should be interpreted narrowly. Therefore the boundaries of acceptable criticism are broader with regard to politicians who are speaking in a public capacity than with regard to a private individual.

According to Article 17 of the Law “On enforcement of judgments and application of European Court of Human Rights case law”, European Court practice is a source of law in the national legal system. This encourages Ukrainian courts to determine level of moral compensation bearing in mind the status of the victim specifically from the point of view of the European Court of Human Rights: if it is a private person, then the compensation should be greater, if a public individual – then less.

An undoubtedly positive feature of the new version of the law is the requirement to bear in mind the material position of the person who caused the damage. This norm makes it possible for the counsel for the journalist or media outlet to demand a reduction in compensations dependent on the journalists’ or media outlet’s income.

A flaw of the legislators was to exclude the requirement to bear in mind the “degree of guilt of the person who inflicted the moral damages if the blame is the grounds for compensation”. However this mistake does not annul the principles of civil law! The courts will regardless work on the basis of Article 1167 of the Civil Code in accordance to which moral damages caused a person through incorrect decisions, acts or inaction shall be compensated by the individual who inflicted them if they were inflicted through his or her fault, except in cases established by law.

There remains one other question: from Article 23 § 3 they took out consideration of the “depth of physical and psychological suffering, deterioration of the capacity of the victim or deprivation of the possibility of exercising them”. It effectively comes about that in determining the size of moral compensation they have removed causing a person to be cripple. However this is not in fact the case since the authors of the law did not touch Article 23 Item 1.2 which states that moral damages consist of “physical pain and suffering which an individual suffered due to being crippled or other damage to health.” While in Article 1167 again, it is stated that in the case of a person being crippled due to a source of heightened danger, moral damages are compensated regardless of guilt.

Thus the new version of Article 23 should not impinge on court practice if judges are guided by the law and could even improve it, although it does not appear as though the authors of the draft law considered that. However it seems a pointless task to try to fathom the motives of National Deputies.